Education Services for Overseas Students Act 2000 and the Education Services for Overseas Students (Consequential and Transitional) Act 2000

Compilation No. 6

Compilation date: 1 July 2016

Includes amendments up to: F2016L00709

Registered: 1 July 2016

About this compilation

This compilation

This is a compilation of the Education Services for Overseas Students Regulations 2001 that shows the text of the law as amended and in force on 1 July 2016 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1—Introduction1

1.01....... Name of Regulations........................................................................... 1

agreed starting day, for a course provided to a student, means the day on which the course is scheduled to start, or a later day agreed between the provider for the course and the student.

confirmation of enrolment means the information a registered provider must give under section 19 of the Act when a person becomes an accepted student of the provider.

non‑government schoolmeans a school in a State that is not conducted by or on behalf of the Government of a State, but does not include a school conducted for profit.

PRISMS(Provider Registration and International Student Management System) means the electronic system of that name used to process information given under section 19 of the Act.

public provider means:

(a) a government school; or

(b) a vocational education and training institution that is owned or controlled (whether directly or indirectly) by a State or Territory; or

(c) a Table A provider within the meaning of the Higher Education Support Act 2003.

student visa means a visa of a subclass mentioned in the definition of student visa in regulation 1.03 of the Migration Regulations 1994, whenever granted, other than:

(a) a visa granted to:

(i) a Foreign Affairs student (within the meaning of the Migration Regulations 1994); or

(ii) a Defence student (within the meaning of the Migration Regulations 1994); or

(b) a visa granted to a person who satisfies the secondary criteria, but not the primary criteria, under the Migration Regulations 1994 for the grant of the visa; or

(c) a visa granted to a person as a secondary exchange student within the meaning of the Migration Regulations 1994; or

(d) a visa granted to a person as an overseas student who has been approved under a scholarship scheme, or an exchange scheme, sponsored by the Commonwealth to undertake a course of study or training in Australia.

universitymeans an institution of higher education specified in Table A of the definition of institutionin subsection 4(1) of the Higher Education Funding Act 1988.

Note: For the definitions of the following terms, see section 5 of the Act:

For paragraph 19(1)(a) of the Act, the following details are prescribed for a person who becomes an accepted student of a provider:

(a) the student’s full name;

(b) the student’s gender;

(c) the student’s date of birth;

(d) the student’s country of birth;

(e) the student’s nationality;

(ea) if the student is under 18 years old:

(i) the current residential address, mobile phone number (if any) and email address (if any) of a person other than the provider who has legal authority to act on the student’s behalf; and

(ii) the relationship of the person to the student;

Example: A parent or guardian.

(f) the unique identifier of the student’s course and its location;

(g) the agreed starting day of the course;

(h) the day when the student is expected to complete the course;

(i) the amount of tuition fees that the provider received for the student for the course before confirming the student’s enrolment using PRISMS;

(ia) if the provider is not a public provider—the start and end dates of the period to which the amount mentioned in paragraph (i) relates;

(ib) the amount of non‑tuition fees that the provider received for the student for the course before confirming the student’s enrolment using PRISMS;

(j) the total amount of tuition fees that the student is required to pay to the provider to undertake the full course in accordance with the written agreement entered into with the student;

(l) if the student has undertaken a test specified in a legislative instrument made for paragraph 476.213(a) or 485.212(a) of Schedule 2 to the Migration Regulations 1994 to determine the student’s level of comprehension of English, the name of the test and the score the student received for the test;

(n) if the student was in Australia when he or she became an accepted student, the number of the student’s passport;

(1) For paragraph 19(1)(f) of the Act, the following are prescribed matters relating to an accepted student who terminates his or her studies before the course is completed:

(a) the information mentioned in paragraphs 3.01(a) to (h) for the student (if the provider has not already given that information using PRISMS);

(b) the student’s current residential address, mobile phone number (if any) and email address (if any) (if the student has given that information to the provider).

(2) For paragraph 19(1)(f) of the Act, the following are prescribed matters relating to an accepted student who changes his or her course, or whose course changes in duration:

(a) the information mentioned in paragraphs 3.01(a) to (h) for the student (if the provider has not already given that information using PRISMS);

(b) the student’s current residential address, mobile phone number (if any) and email address (if any) (if the student has given that information to the provider).

(2A) For paragraph 19(1)(f) of the Act, the following are prescribed matters relating to an accepted student where the location at which the student’s course is provided changes:

(a) the information mentioned in paragraphs 3.01(a) to (h) for the student (if the provider has not already given that information using PRISMS);

(b) the student’s current residential address, mobile phone number (if any) and email address (if any) (if the student has given that information to the provider).

(3) For paragraph 19(1)(f) of the Act, the following are prescribed matters relating to an accepted student whose studies have been deferred or suspended:

(a) the proposed duration of any deferment of studies;

(b) the proposed duration of any suspension of studies.

(4) For paragraph 19(1)(f) of the Act, the following are prescribed matters relating to an accepted student whose studies have been suspended or deferred by the provider or at the request of the student:

(a) any change to the proposed end date of the deferment of studies;

(b) any change to the proposed end date of the suspension of studies.

(5) For paragraph 19(1)(f) of the Act, the following are prescribed matters relating to an accepted student of a provider that is not a public provider, for whom the provider receives tuition fees during a calendar month:

(a) the amount of each payment made;

(b) the date the payment was made;

(c) the start and end dates of the period to which the payment relates.

For subsections 19(2) and 20(1) of the Act, a prescribed condition of a student visa is visa condition 8202, set out in Schedule 8 to the Migration Regulations 1994.

Note: Subsection 19(2) of the Act requires a registered provider to give particulars of any breach by an accepted student of a prescribed condition of a student visa. Under subsection 19(3) of the Act, the information must be entered in the computer system established by the Secretary under section 109 of the Act.

For subsection 21(2) of the Act, the records of each accepted student who is enrolled with a provider or who has paid any tuition fees for a course provided by the provider must include the following details:

(a) the amount of money that the student has paid to the provider, including the separate identification of tuition fees and non‑tuition fees;

(b) for an amount of tuition fees that the student has paid to the provider for a course:

(i) whether the amount was paid for the full course or part of the course; and

(ii) if the amount was paid for the full course, the duration of the course; and

(iii) if the amount was paid for part of the course, the duration of that part of the course;

(c) copies of written agreements to which the provider and student are parties;

(d) any amounts that:

(i) have become payable, directly or indirectly, to the provider by the student for the student to undertake a course; and

(ii) have not been paid;

(e) the amount that a student will be charged to access the student’s records.

For section 106 of the Act, this Part provides a procedure under which a registered provider who is alleged to have committed an offence to which section 106 of the Act applies may, as an alternative to having the matter dealt with by a court, dispose of the matter by payment of a monetary penalty (an infringement notice penalty) specified in a notice (an infringement notice) served on the provider.

(1) If there are reasonable grounds for believing that a registered provider has committed an offence to which section 106 of the Act applies, the ESOS agency for the provider may serve an infringement notice, or cause an infringement notice to be served, on the provider in accordance with regulation 6.03.

(2) The notice must set out the following information:

(a) the name of the provider served and the address of the provider’s place of business;

(b) the provision of the Act that it is alleged has been contravened;

(c) details of the alleged offence, including the day, and (if appropriate) the time, on which it is alleged to have been committed;

(d) the maximum penalty that may be imposed by a court for the offence;

(e) the amount payable as the infringement notice penalty;

(f) a statement that, if the provider prefers that the matter not be dealt with by a court, the provider may signify that preference by paying the infringement notice penalty:

(i) before the end of 28 days after the day the notice is served; or

(ii) if a further period is allowed by the ESOS agency under regulation 6.04—before the end of that further period; or

(iii) if payment by instalments is permitted under regulation 6.05—in accordance with the permission;

(g) how, and where, the infringement notice penalty may be paid;

(h) a statement that if, before the end of 28 days after service of the notice, the provider notifies the ESOS agency, in the manner set out in the infringement notice, of any facts or matters that the provider believes ought to be taken into account in relation to the alleged offence:

(i) time for payment of the penalty will be extended to the extent necessary to enable a decision to be made about those facts or matters; and

(ii) the ESOS agency must consider the matters mentioned in subregulation 6.06(5);

(i) a statement of the matters, mentioned in subregulation 6.06(5), that the ESOS agency must consider;

(j) a statement that, if the infringement notice penalty is paid in time:

(i) the provider’s liability for the offence is discharged; and

(ii) further proceedings cannot be taken against the provider for the offence; and

(iii) the provider is not taken to have been convicted of the offence;

(k) a statement to the effect that, if none of the things mentioned in paragraph (f) or (h) is done within the time specified, the provider may be prosecuted for the alleged offence;

(l) the name of the person who serves the notice.

(3) An infringement notice may contain any other information that the ESOS agency considers necessary.

(4) The notice must be served on the provider not more than 12 months after the alleged commission of the offence.

(1) On written application by a provider on whom an infringement notice has been served, the ESOS agency for the provider may grant, if satisfied that in all the circumstances it is reasonable to do so, a further period for payment of the infringement notice penalty, whether or not the period of 28 days after the date of service of the notice has ended.

(2) If application is made after the end of the 28 day period, the application must include an explanation why the alleged offender could not deal with the notice within that period.

(3) The ESOS agency must:

(a) grant or refuse a further period; and

(b) give the applicant written notice of the decision; and

(c) if the decision is a refusal—mention in the notice the reasons for refusal.

(b) the ESOS agency for the provider is satisfied that in all the circumstances it is proper to do so;

the ESOS agency may make an arrangement with the provider (whether or not the period of 28 days after the date of service of the notice has ended) for the payment of the amount of the infringement notice penalty by instalments.

(2) The ESOS agency must:

(a) grant or refuse to make an arrangement; and

(b) give the provider written notice of the decision; and

(c) if the decision is a refusal—mention in the notice the reasons for refusal.

(b) the ESOS agency for the provider is satisfied that in all the circumstances it is proper to do so;

the ESOS agency may withdraw the notice (whether or not the ESOS agency has received a notice under paragraph 6.02(2)(h)).

(2) If, before the end of 28 days after receiving an infringement notice, a provider gives the ESOS agency for the provider notice under paragraph 6.02(2)(h), the ESOS agency must decide whether to withdraw the infringement notice.

(3) The ESOS agency must:

(a) withdraw, or refuse to withdraw, the notice; and

(b) give the provider written notice of the decision; and

(c) if the decision is a refusal—mention in the notice the reasons for refusal.

(4) If the ESOS agency decides to refuse to withdraw an infringement notice, notice of that decision must state that:

(a) if the amount of the infringement notice penalty is paid within 28 days after notice of the decision is given to the provider, the provider will not be prosecuted for the alleged offence; and

(b) if that amount is not paid in accordance with paragraph (a), the provider may be prosecuted for the alleged offence.

(5) In making a decision, the ESOS agency must consider:

(a) the facts or matters set out in the notice (if any) given under paragraph 6.02(2)(h); and

(b) the circumstances in which the offence mentioned in the notice is alleged to have been committed; and

(c) whether the provider has been convicted previously of an offence to which section 106 of the Act applies; and

(d) whether an infringement notice has previously been given to the provider for an offence of the same kind as the offence mentioned in the notice; and

(e) any other matter the ESOS agency considers relevant to the decision.

Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

(1) At the hearing of a prosecution for an offence mentioned in an infringement notice, the following certificates are evidence of the facts stated in the certificate:

(a) a certificate signed by an authorised officer of the ESOS agency for the alleged offender and stating that:

(i) the infringement notice was served on the alleged offender; and

(ii) the infringement notice penalty has not been paid in accordance with this Part;

(b) a certificate signed by an authorised officer of the ESOS agency for the alleged offender and stating that the notice was withdrawn on a day specified in the certificate;

(c) a certificate signed by an authorised officer of the ESOS agency for the alleged offender and stating that:

(i) a further period was refused, under regulation 6.04, for payment of the infringement notice penalty; and

(ii) the infringement notice penalty has not been paid in accordance with this Part;

(d) a certificate signed by an authorised officer of the ESOS agency for the alleged offender and stating that:

(i) for regulation 6.04, the further time mentioned in the certificate for payment of the infringement notice penalty was granted; and

(ii) the infringement notice penalty was not paid in accordance with the notice or within the further time.

(2) A certificate that purports to have been signed by an authorised officer of the ESOS agency for the alleged offender is taken to have been signed by that authorised officer unless the contrary is proved.

If a cheque is given to the Commonwealth in payment of all or part of the amount of an infringement notice penalty, the payment is taken not to have been made unless the cheque is honoured on presentation.

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

In preparing this compilation for registration, the following kinds of editorial change(s) were made under the Legislation Act 2003.

Subregulation 6.04(1)

Kind of editorial change

Give effect to the misdescribed amendment as intended

Details of editorial change

Schedule 1 item 24 of the Education Services for Overseas Students Amendment Regulation 2016 instructs to omit “Minister,” and substitute “ESOS agency for the provider,”.

The word “Minister,” does not appear in subregulation 6.04(1). However the word “Minister” does appear.

This compilation was editorially changed to omit the word “Minister” and substitute the words “ESOS agency for the provider”. This editorial change gives effect to the misdescribed amendment as intended.